Rodriguez v. Clupper

Before
the Court are two Recommendations from United States
Magistrate Judge Charles H. Weigle, one recommending denying
the Plaintiff's motion to amend his complaint (Doc. 202)
and the other recommending denying the Plaintiff's motion
to sever his secondary due process claim (Doc. 225). Docs.
218; 247. The Plaintiff has objected to both Recommendations.
Docs. 221; 259. Pursuant to 28 U.S.C. 636(b)(1), the Court
has considered the objections and made a de novo
determination of the portions to which the Plaintiff objects.

I.
DISCUSSION

A.
First Recommendation

Regarding
the first Recommendation to deny the Plaintiff's motion
to amend his complaint, the Plaintiff points out several
“errors, ” none of which change the conclusion
reached by the Magistrate Judge. First, the Plaintiff
contends the Magistrate Judge erred by misconstruing his
motion to amend as if the Plaintiff was seeking to rehash the
same, previously dismissed, supervisory liability claim
against Defendant Chatman. Doc. 221 at 2. According to the
Plaintiff, the supervisory liability claim he now seeks to
bring against Defendant Chatman is “distinctively
different.” Id. The Court disagrees. It is
clear from the record that this supervisory liability claim
is simply building upon what was originally pled in the
initial complaint. See Doc. 1 at 13 (the
Plaintiff's alleging that, despite his filed grievance,
Defendant Chatman condoned the abusive and assaultive actions
of Defendant Clupper). Thus, the Court concludes the
Magistrate Judge did not err in finding that the
Plaintiff's allegation that Defendant Chatman took
actions to “cover-up the assault upon the Plaintiff by
Defendant Clupper” is not new and has previously been
ruled on.[1] Doc. 218 at 7-8.

Nonetheless,
to support his allegation of the cover-up, which, again, is
not new, the Plaintiff offers “additional
evidence” that he ostensibly discovered only through
discovery. Doc. 221-2 at 2. This evidence appears to be an
incident report submitted by Defendant Kyles on January 17,
2014. Doc. 221-11 at 3. In the report, Defendant Kyles states
that on December 19, 2013, Defendant Clupper “reported
to” him that the Plaintiff “tried to force his
hands through flap as [Defendant Clupper] was trying to
secure it.” Id. The Plaintiff contends that
Defendant Clupper violated Georgia Comp. R. & Regs.
§ 125-3-2.07(c) and SOP IIB08-0001 because Defendant
Kyles, who “played no part in the use of force, ”
filed the incident report instead of Defendant Clupper. Docs.
221-2 at 2; 221-3 at 1; 221-4 at 1. However, nowhere in the
Georgia Rules and Regulations or the Georgia Department of
Corrections (GDC) Standard Operating Procedures (SOP) is
there language requiring the officer who used force to file
an incident report. See Docs. 221-12 at 3; 221-15 at
11. Rather, a report need only be prepared by “the
Correctional Officer(s) or employee(s) involved in
each such incident, ” and by the “senior Official
in charge of the incident.” Id. (emphasis
added). Clearly, as the incident report states, Defendant
Kyles was on duty on December 19, 2013, and thus was the
official in charge on that specific date.[2] He also was
involved in the incident by virtue of Defendant Clupper
reporting to him what had occurred. Thus, it is
clear Defendant Clupper was not in violation of Georgia Comp.
R. & Regs. § 125-3-2.07(c) or SOP IIB08-0001.

The
Plaintiff also argues that Defendant Chatman violated the
Georgia Rules and Regulations and GDC SOP because “it
took 3.5 weeks for Warden Chatman to review the incident
report” and Defendant Chatman “never forwarded
the incident report to the Field Director, not the
Commissioner, and specifically not to the Internal
Investigation Unit.” Doc. 221-3 at 1-2. However, again,
the language provided in the Georgia Rules and Regulations
and GDC SOP makes clear that Defendant Chatman was not in
violation of the rules and procedures. As an initial matter,
the Georgia Rules and Regulations and GDC SOP do not state
that the warden must review the incident report within 72
hours of the incident; they merely state that the incident
report shall be submitted or forwarded to the warden within
that time frame. Docs. 221-11 at 4; 221-12 at 3 (Georgia
Comp. R. & Regs. § 125-3-2.07(c)); 221-15 at 11 (SOP
IIB08-0001). Simply put, the fact that the warden reviewed
the report weeks after the incident does not necessarily mean
the report was never forwarded to Defendant Chatman within
the required time frame. But even assuming a corrections
officer did not forward the report to Defendant Chatman
within 72 hours of the incident, this merely amounts to an
“isolated occurrence, ” which is insufficient to
notify Defendant Chatman of widespread abuse. See Brown
v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990) (holding
that “deprivations that constitute widespread abuse
sufficient to notify the supervising official must be
obvious, flagrant, rampant and of continued
duration, rather than isolated
occurrences”) (emphasis added).

Moreover,
the incident report seems to suggest that the incident was
minor in nature. See Doc. 221-11 at 3
(“Medical from GDCP was notified and stated since
inmate was not in any distress at the time he could be
checked in the morning.”); see also Doc.
221-13 at 3 (SOP IIA04-0002 defining “minor
incidents” as “those activities that are
considered to be within the normal routine at prisons/centers
and would not cause any adverse public concern or notoriety.
Examples of such incidents would be certain non-serious
inmate injuries that can be addressed/treated by the local
facility medical staff. . . ”). Thus, while the
incident report does not state that the incident was
forwarded for investigation-or for that matter, to the Field
Operations Manager-this was likely due to the fact that the
incident was considered minor in nature and therefore did not
require an investigation. See Doc. 221-13 at 4, 5
(SOP IIA04-0002 stating that the “Warden/Superintendent
will make the determination as to whether the incident is
major or minor in nature” and “will forward any
major incident report to the appropriate Field
Operations Manager in accordance with IK01-0001”)
(emphasis added); see also Arthur v. Comm'r, Ala.
Dep't of Corr., 680 Fed.Appx. 894, 911 (11th Cir.
2017) (noting courts “must accord adequate deference to
the judgment of the prison authorities”) (quotation
marks and citations omitted).

In sum,
the Plaintiff's “additional evidence” of the
cover-up regarding the incident report is still insufficient
to establish supervisory liability. Accordingly, to the
extent the Plaintiff seeks relief under Federal Rule of Civil
Procedure 60(b)(2) for newly discovered evidence, that
request is DENIED. Doc. 221-5 at 1.

The
Plaintiff also challenges the Magistrate Judge's
alternative finding that the amendment would be futile. Docs.
221-1 at 1; 218 at 8. According to the Magistrate Judge, the
amendment would be futile because, even though the Plaintiff
argues Defendant Chatman did not forward the Plaintiff's
grievance against Defendant Clupper to the Internal
Investigations Unit (IIU), the GDC SOP “does not place
the burden on the warden” to do so. Doc. 218 at 8-9. As
support, the Magistrate Judge quotes a portion of SOP
IIB05-0001, which states, “At any time before the
Warden's Grievance decision is delivered to the offender,
the Warden may refer the matter to the Internal
Investigations Unit.” Id. at 9 (emphasis
added). Focusing on the word “may, ” the
Magistrate Judge reasoned that this quoted portion grants the
warden “wide discretion on whether to handle grievances
alleging the use of physical force internally, or whether to
submit the grievance to the Internal Investigations
Unit.” Id. However, directing the Court's
attention to the paragraph following the quoted portion, the
Plaintiff argues that Defendant Chatman does have the burden.
Doc. 221-1 at 2. The paragraph reads, “If an offender
files a grievance involving sexual assault or physical force
involving non-compliance with Department policies; such
actions automatically end the grievance process. These
grievances are automatically forwarded through the Scribe
application to Internal Investigation Unit and/or the PREA
Coordinator for review and whatever action is deemed
appropriate.” Doc. 40-3 at 11. First, while the
Plaintiff is correct in that there are two distinct instances
where a grievance is automatically forwarded to the IIU, it
is not at all clear from the quoted paragraph whether the
burden is placed on the warden to forward that grievance in
those instances. In fact, the paragraph states, passively,
that the “grievances are automatically forwarded
through the Scribe application, ” and makes no
mention that the grievances are forwarded “by the
warden.” This seems to suggest that there is an
entirely separate process in place for forwarding grievances
that allege sexual assault or physical force. Moreover, even
assuming the burden is placed on the warden to automatically
stop the grievance process and forward it to the IIU, the
mere fact that the Plaintiff's grievance brought to light
the allegedly violative conduct does not rise to a claim of
supervisory liability. See Larson v. Meek, 240
Fed.Appx. 777, 780 (10th Cir. 2007) (“[D]enial of the
grievances alone is insufficient to establish personal
participation in the alleged constitutional
violations.”); Spore v. Rogers, 2015 WL
5046582, at *5 (M.D. Ga. 2015) (quoting Larson).
Accordingly, the Court agrees with the Magistrate Judge that
the Plaintiff's amendment would be futile. See Bryant
v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (noting
an amendment need not be allowed “where amendment would
be futile”) (citation omitted).

The
Plaintiff's two remaining objections merit little
discussion. First, the Plaintiff points out that
“contrary to the Magistrate's and Defendants[']
aqusations [sic], Plaintiff has not filed 6 previous amended
complaints.” Doc. 221-5 at 2. However, the exact number
of times the Plaintiff has moved to amend is immaterial; the
point is that the Plaintiff has had many opportunities to
amend his complaint, and justice does not require allowing
the Plaintiff to amend any more than he already has,
particularly given that his amendment, as discussed above,
would be futile.

Second,
the Plaintiff objects to the Magistrate Judge's previous
order on motions related to discovery issues. See
generally Doc. 217. Specifically, the Plaintiff asks the
Court to reconsider the order regarding his motions for
extension of time to complete discovery (Docs. 200; 204);
motion for a conference with the Court regarding discovery
disputes (Doc. 205); motion to compel (Doc. 207); motion for
an extension of time (Doc. 211); and motion for a stay (Doc.
212).[3] Doc. 221-6 at 1. The Court construes this
objection as a motion for reconsideration. Pursuant to 28
U.S.C. § 636(b)(1)(A), the Court may reconsider any
pretrial order of a magistrate judge “where it has been
shown that the magistrate judge's order is clearly
erroneous or contrary to law.” The Plaintiff has failed
to show that the Magistrate Judge's order was clearly
erroneous or contrary to law. Moreover, it appears the motion
for reconsideration is moot, because discovery in this case
has closed and the Plaintiff has moved for partial summary
judgment.[4] Doc. 235. Accordingly, the Plaintiff's
motion for reconsideration is DENIED.

B.
Second Recommendation

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In the
second Recommendation, the Magistrate Judge recommends
denying the Plaintiff&#39;s motion to sever his
&ldquo;secondary due process claim&rdquo; because that claim
&ldquo;has more in common with Plaintiff&#39;s due process
claim in Rodriguez I&rdquo; (which is one of eleven
cases that have been filed by inmates in Tier III of the
Special Management Unit (SMU) of Georgia Diagnostic and
Classification Prison). Doc. 247 at 2. This &ldquo;secondary
due process claim&rdquo; appears to be that Defendants Powell
and Logan kept the Plaintiff in disciplinary isolation
without providing a meaningful review process. Doc. 259 at 3.
According to the Plaintiff, the secondary due process claim
is &ldquo;more in line with Rodriguez II&rdquo;
because it supports the Plaintiff&#39;s retaliation claim in
Rodriguez II, the alleged retaliatory conduct being
that Defendants Powell and Logan, as a result of the
Plaintiff filing a grievance about a “sham”
disciplinary report, which was later ...

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